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The Division of Retirement Benefits in A Military Divorce

Boyd Family Law Dec. 29, 2021

During a divorce, the marital assets and debts must be divided. In a non-military divorce that may include retirement benefits such as pensions and 401(k) accounts. In a military divorce, the division of retirement benefits is often a much more complex task because of the state and federal rules governing a spouse’s right to those benefits. Fort Worth military divorce attorney Jon Boyd explains some basic rules relating to the division of retirement benefits in a military divorce.

Understanding the Law

Contrary to popular belief, there is no federal law that automatically entitles a former spouse to a portion of a servicemember’s military retired pay. A former spouse must be awarded a portion of a member’s military retired pay in a state court order. The Uniformed Services Former Spouses’ Protection Act (USFSPA), however, authorizes — but does not require — state courts to divide military retired pay as a marital asset or as community property in a divorce proceeding. It also provides a mechanism for a former spouse to enforce a retired pay as property award by direct payments from the member’s retired pay. Retired pay as property payments are prospective only, meaning that arrears cannot be collected under the USFSPA.

What Might a Military Spouse Be Entitled to In a Divorce?

When one party to a divorce is a servicemember who is (or may be) entitled to retirement benefits, the portion or amount of those benefits that a spouse might be entitled to will depend on the length of the marriage and the length of the spouse’s service. To make things even more complicated, some benefits are subject to division (and therefore negotiation), while a spouse it entitled to others outright. The following are some general guidelines:

  • Marriage of Any Duration

  • Military Retirement. Courts can award a former spouse a share of the military retirement even after just a brief marriage. But the shorter a marriage, the less valuable such an award is. In addition, if the marriage lasted less than 10 years the spouse will not be eligible for direct payments from DFAS.

    • Thrift Savings Plan. This is a defined contribution plan, similar to a 401(k) or IRA, available to members of the military.

    • VA Disability Payments. Although these are not subject to division in a divorce, if maintenance or child support is ordered, VA disability payments are included as income to the veteran/retiree.

    • Tricare Continued Health Care Benefit Program. This is a program similar to COBRA benefits that apply to civilian medical care. For a premium, the former spouse may continue Tricare coverage for three years, or, if the spouse is not remarried and either receiving a share of the military retirement or SBP, the coverage may remain indefinitely.

    • Post-9/11 GI Bill Benefits. Federal law prohibits the division of this benefit. A former spouse may only use it if the spouse were an eligible beneficiary at the time of divorce, and the member agrees to share it.

  • Marriage of at Least 10 Years with Overlapping Military Service

  • Direct Payment of Military Retirement from DFAS. Often referred to as the 10/10 Rule, for a marriage that lasted for at least 10 years during the servicemember’s career, DFAS will pay the former spouse’s share directly to the former spouse.

  • Marriage of at Least 20 Years with Overlapping 15 Years of Service

  • 20/20/15 Health Benefits. A former spouse who was married for at least 20 years to the member, during which the member served at least 20 years, and there were at least 15 years of overlap, is entitled to 1 year of transitional medical benefits.

  • Marriage of at Least 20 Years with Overlapping 20 Years of Service

  • 20/20/20 Health Benefits. The former spouse is entitled to retain an ID card and all benefits that go along with it, including Tricare medical, access to military installations and the commissary.

Contact a Fort Worth Military Divorce Attorney

If you are in the military, or you are the spouse of someone who is, and you are contemplating divorce, contact an experienced Fort Worth military divorce attorney at Boyd Family Law to discuss your legal rights and options and to schedule your appointment today.